Caballero, Darrell v. The State of Texas--Appeal from 85th District Court of Brazos County

Affirmed and Opinion filed  December 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00290-CR

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DARRELL CABALLERO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 85th District Court

Brazos County, Texas

Trial Court Cause No. 29,156-85

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O P I N I O N

Darrell Caballero appeals the trial court s denial of credit for time he served in jail before sentencing. We affirm.

Following a guilty plea, the trial court found appellant guilty of state jail felony theft and sentenced him to 23 months confinement without credit for the time he spent in jail before trial and sentencing. Appellant s sole point of error contends that denying him credit for the 136 days he served in county jail before sentencing was error because, when

combined with the 23 months of his sentence, it would cause him to serve, in the aggregate, more than the two year maximum sentence[1] allowed by statute.

A trial court generally has discretion whether to credit against any time a defendant is required to serve in a state jail felony facility time served by the defendant in county jail between the times of arrest and sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, 15(h)(2) (Vernon Supp. 2003). However, the Equal Protection Clause of the Fourteenth Amendment requires that an inmate be given credit for pre-sentencing jail time if he was unable to post a bond due to his indigence and received the maximum sentence. Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997). Conversely, this exception does not apply where less than the maximum punishment is assessed and the appellant would not be required to serve more than the maximum term even if the pretrial jail time were added to the term assessed. Ex parte Bates, 978 S.W.2d 575, 577 (Tex. Crim. App. 1998).

In this case, the record does not reflect whether appellant was released on bond[2] or thus whether he spent an amount of time in jail before sentencing that, combined with his sentence, would exceed the maximum punishment allowable. Because appellant has therefore not demonstrated that he is entitled to relief, his sole point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed December 12, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] See Tex. Pen. Code Ann. 12.35(a) (Vernon 1994).

[2] Such information is not listed among the materials automatically included in the clerk s record, and no request for additional items appears in our record. See Tex. R. App. P. 34.5(a), (b).